NEED URGENT HELP REGARDING ILR

[members]

Dear All,

I need urgent help regarding my potential ILR application.

My background:

I am going to apply for ILR (on the basis of long residence) in January 2014. My current immigration status is PSW. I have recently spent 4 months and 13 days (07/01/13 to 18/05/13) out of the UK. I will have to travel again in August this year, and this time the duration (out of the UK) would be a further 3 months. I would therefore be absent from uk for a total period of 7 months and 13 days this year. 2013 is the penultimate year of my ILR application.

The relevant law:

I am aware that the immigration rule 276A(a) states that continuous residence shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time.

My concern:

I think, according to paragraph 276A(a), it is clear that my two different absences (4 months and 13 days + 3 months) shall not be considered to have been broken. However, I have grave concerns about my ILR application.

I am told that these two absences, though on two different occasions, will be considered together as these absences are taking place in the same year!

I must travel in August as this is really important to me. On the other hand, I don't want to be refused for the ILR.

I sincerely request all members (either faced with similar scenario and/or the senior members of the forum) to help me.

Your advice can save a life.

[members]

Senior Members of the forum, please bestow me with your valuable responses. If I can't make it to the ILR because of my unavoidable-imminent-absence in August, I will leave UK sooner rather than later.

[vinny]

I am told that these two absences, though on two different occasions, will be considered together as these absences are taking place in the same year!

This may be beyond the requirements of the Immigration rules?

It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve...

[members]

I am told that these two absences, though on two different occasions, will be considered together as these absences are taking place in the same year!

This may be beyond the requirements of the Immigration rules?

It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve...

Dear Vinny,

Thanks for your reply. However, I am not entirely sure what you meant by saying- "This may be beyond the requirements of the Immigraton Rules?" It is because there is a question mark at the end of your statement.

Although I have read through the case you mentioned, I am still unclear about its relevance to my situation.

Please be kind enough to elaborate your view/understanding in some details.

[vinny]

I am told that these two absences, though on two different occasions, will be considered together as these absences are taking place in the same year!

Can you find anything in the Long residence Immigration rules that state the above?

[Amber]

If you want someone to guarantee you the answer, you need to seek professional OISC advice.

[members]

I am told that these two absences, though on two different occasions, will be considered together as these absences are taking place in the same year!

Can you find anything in the Long residence Immigration rules that state the above?

No, I cannot. However, I was 'told' by a professional OISC level 3 adviser that if I travel again this year, my ILR application is bound to be refused.

I argue, on the basis of Paragraph 276A(a), that an absence of 180 days or less at any one time (which does not mean overall but individual occasions of gaps) shall(mandatory) not be considered as a gap that breaks the continuous lawful residence.

I further argued that if one, in an extreme case, stays out of the UK for 180 days, then come back and stays here for few days and then go back for another few months, shall not be taken as to be breaking his/her continuous lawful residence, provided that s/he does not spent a total of 540 days out of the UK during the whole 10 year period.

Nonetheless, my argument was contradicted by the OISC adviser who told me that there are plenty of cases, that he personally dealt with, where UKBA refused ILR applications because those applicants spent long (but less than 6 months) periods out of the UK without substantial-explanations justifying their gaps! I was strictly advised not to travel again this year as because the ILR application, being a discretionary route to settlement anyway, will not be seen as having established strong ties in the UK.

I could not argue any more as this would eventually turn into a row. After all, I went to seek advice but not give any. I came home feeling low and devastated.

[members]

If you want someone to guarantee you the answer, you need to seek professional OISC advice.

Dear D4109125,

Thanks for your interest, please see my reply above.

[Amber]

Then if the advisor tells you the reality is it not worth taking their advice and limiting you absence to <6 months? Rather than having to take further action upon possibly being refused? Although, to me it appears that providing you meet the 2 conditions, less than 6 months at a time and a total of less than 540 days in the 10 years period you should be ok.

[members]

Then if the advisor tells you the reality is it not worth taking their advice and limiting you absence to <6 months? Rather than having to take further action upon possibly being refused? Although, to me it appears that providing you meet the 2 conditions, less than 6 months at a time and a total of less than 540 days in the 10 years period you should be ok.

Yes certainly it is worth NOT taking a risk at this point. However, I must travel in August as this is to do with an overseas exam that takes place once in a year. Due to the fact that my passport will remain with UKBA for the substantial part of 2014, I won't be able to sit this exam next year either.

Even though I have spent 4 months and 13 days already this year, it is still less than 180 days in one go. So technically, I can go for another leave of 180 days or less, and this is regardless whether the second leave starts 1 day or 60 days after the already spent leave (of 4 months and 13 days).

The adviser was not keen on showing ONE particular example from the cases he mentioned as examples. I am certainly sure that he was negligent about what he was advising.